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CYBERLAW

INTEL CORP. V. HAMIDI: TRESPASS TO CHATTELS

AND A DOCTRINE OF CYBER-NUISANCE

By Steven Kam

It stands to reason that the faster a technology develops, the morerapidly it will surpass preexisting law, and the more prominentcommon law theories may become ... . It is not surprising,therefore, that as the Internet geometrically expands its speed...intellectual property owners again must consider the commonlaw as a source of protection .... 1

The revival of the once moribund action of trespass to chattels exem-plifies the truth of this statement. In Intel Corp. v. Hamidi, the CaliforniaSupreme Court became the first state high court to recognize the applica-tion of this tort to networked computers. The court affirmed the tort's ex-pansion as a pragmatic answer to the problem of electronic invasions, butalso imposed restraints to prevent the degradation of the Internet's useful-ness through misuse of this tort.3 The court's discussion of harms andbenefits also transcended the rule-based construction of trespass to chat-tels. A reading of the analysis suggests that the tort may well come to re-semble a doctrine of nuisance in cyberspace or pave the way for cyber-nuisance as an action unto itself.4 The economic foundations of nuisancelaw adapt readily to the social and commercial realities of cyberspace,where the consequences of interconnected behavior demand a more bal-anced and nuanced analysis than bright-line rules can offer.

© 2004 Berkeley Technology Law Journal & Berkeley Center for Law and Technology.

1. Bruce P. Keller, Condemned to Repeat the Past: The Reemergence of Misap-propriation and Other Common Law Theories of Protection for Intellectual Property, 11HARV. J.L. & TECH. 401, 428 (1998).

2. Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (2003).3. See generally Dan Hunter, Cyberspace as Place and the Tragedy of the Digital

Anticommons, 91 CALIF. L. REv. 439 (2003). Misuse could lead to a "tragedy of the anti-commons," in which the Internet never achieves its full potential due to excessive trans-actions costs (in this case, in the form of burdensome litigation and licensing procedures).Id. at 444. The court's opinion reflects that concern by quoting amici curiae, includingProfessor Mark Lemley, who note that such a tangle of property rights would signifi-cantly impede everyday activities on the Internet. See Hamidi, 30 Cal. 4th at 1362-63.

4. See Dan L. Burk, The Trouble with Trespass, 4 J. SMALL & EMERGING Bus. L.27, 53-54 (2000) (suggesting "nuisance to websites" or "cyberspace nuisance" are betterfoundations than a doctrine of trespass for property rights in cyberspace).

BERKELEY TECHNOLOGY LAW JOURNAL

Part I of this paper provides a primer on the technical terminology andconcepts needed to understand the issues presented by the new generationof trespass to chattels cases. Part II summarizes modem treatment of tres-pass to chattels prior to Hamidi. Part III explains the facts of Hamidi andthe court's addition of considerable flexibility in allowing the doctrine oftrespass to chattels to reflect the realities of networked computers. It alsodiscusses the selective rigidity which the court imposes for the sake ofpreventing overbreadth. Part IV discusses the court's balancing analysis ofharms and benefits, which steps outside the literal, bright-line boundariesof personal property law and into the territory of nuisance law. Part V il-lustrates possible applications of nuisance law to cyberspace and demon-strates its relative advantages in governing activity on the Internet.

I. TECHNICAL PRIMER

Intel Corp. v. Hamidi, on its most basic level concerns the permissibil-ity of one of the most common forms of electronic communication on theInternet: e-mail. Intel Corporation owns and operates an e-mail system foruse by its employees in business and reasonable personal use.5 An ex-employee, Kenneth Kourosh Hamidi, sent several unsolicited e-mails tothousands of addresses on Intel's system, the contents of which were un-sympathetic to Intel.6 Intel then sought both technical and legal means toforbid Hamidi that use of its system.7 By itself, e-mail is just a form ofelectronic communication, but its use in both commercial advertising aswell as personal and business communication has given rise to many ques-tions concerning its proper use.

A. Basic Architecture of the Internet

Though any privately-owned computer qualifies as personal property,it must be understood that connecting such a computer to the Internetmakes it accessible to many other entities attached to the architecture. TheInternet is a network of computers which transmit information and data toone another through an established series of protocols.8 Its utility increasesexponentially as more computers are connected to it due to the phenome-non of "network benefits." 9 Each computer, as a point on the network,

5. Hamidi,30Cal.4that 1349 n.1.6. Id. at 1349, 1356.7. Id. 1348-49.8. See generally CompuServe Inc., v. Cyber Promotions, Inc., 962 F. Supp. 1015,

1018 (S.D. Ohio 1997); ACLU v. Reno, 929 F. Supp. 824, 837-38 (E.D. Pa. 1996).9. See generally Burk, supra note 4, at 50-51; Michael L. Katz & Carl Shapiro,

Network Externalities, Competition, and Compatibility, 75 AM. ECON. REv. 424 (1985);

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20041 TRESPASS TO CHATTELS & A DOCTRINE OF CYBER-NUISANCE 429

possesses a permanent or temporary IP address and often an associatedalphanumeric domain name.10 A prearranged protocol" uses these ad-dresses to route "packets" of data, containing anything from digital videoto malicious viruses or worms, across one or more computers for deliveryat its final destination.

B. Network Congestion

Network congestion adversely affects the speed of Internet communi-cations. Though Internet Service Providers (ISPs) 12 strive to provide facili-ties that allow fast and uninterrupted flows of information, a deluge ofdata can still create excessive traffic at individual points on the network.While the Internet's infrastructure regularly deals with simultaneous trans-fers to the same address, the intermediaries between two computers maybe overwhelmed when the frequency of requests and data packets saturatesthe server's capacity.' 3 When a legitimate user cannot access the onlineresource because another party, legitimately or not, occupies it, a "denialof service" has occurred.' 4 Moreover, when large amounts of wanted orunwanted data arrive at their destination, they take up storage space on thedestination computer.' 5 These occurrences constitute denial of service onthe Internet, and such actions purposely undertaken to deny access to agiven online resource are called denial of service attacks.' 6

Stan J. Liebowitz & Stephen E. Margolis, Network Externality: An Uncommon Tragedy,8 J. ECON. PERSP. 133, 135, 139-40 (1994). "Utility" is a general measure of value orusefulness, and though it is an abstract concept, economists often use monetary value as aconvenient stand-in. "Network effects" describe increases in utility that benefit dispro-portionately from increased membership, with communications networks being an excel-lent example.

10. See generally Alan Silverstein, Under the Hood of the World Wide Web, Learn-theNet.com, at http://www.learnthenet.com/english/html/70alan.htm (last visited Mar. 16,2004).

11. Howard Gilbert, Introduction to TCP/IP, at http://www.yale.edu/pclt/COMM/TCPIP.HTM (last updated Feb 2, 1995).

12. See Reno, 929 F. Supp. at 832-34; see Silverstein, supra note 10.13. See CompuServe, 962 F. Supp. at 1028.14. See Denial of Service, CERT Coordination Center, Carnegie Mellon Software

Engineering Institute, at http://www.cert.org/tech-tips/denial-of service.html (last vis-ited Dec. 17, 2003).

.15. See CompuServe, 962 F. Supp. at 1022.16. See Denial of Service, supra note 14.


C. Spam

Communication over the Internet is fast, inexpensive, and convenient;a boon to private users as well as to commercial entities.' 7 Spam refers toany unwanted unsolicited bulk e-mail ("UBE") or unsolicited commerciale-mail ("UCE"). 8 While most think of spam as unwanted e-mail, thebroad definition of spam can include webpages and "pop-up" ads whicharrive in the course of ordinary web surfing 19 or through "adware" or"spyware" which a remote party installs on a computer, often without theowner's knowing or intended acquiescence. 20 The intent behind the trans-mission of spam is sometimes commercially "legitimate," but often it isfraudulent. 21 Even proponents of free speech and open access rarely advo-cate, much less defend, the practice of "spamming. ' 22 Private partiessometimes attempt to stem the tide of spam on their own, generallythrough the use of filters23 that selectively block IP addresses or identifyunwelcome messages by their e-mail address or message headers. Spam-

17. See CompuServe, 962 F. Supp. at 1018; Carol Jones, E-Mail Solicitation: WillOpening a "Spain-Free" Mailbox Ever Be a Reality?, 15 LOY. CONSUMER L. REV 69, 70-72 (2002) (sending spain is so inexpensive that even a low response rate gives a betterreturn on marketing over the Internet than through junk mail).

18. See generally Scot M. Graydon, Much Ado about Spain: Unsolicited Advertis-ing, the Internet, and You, 32 ST. MARY'S L.J. 77, 78 (2000); David E. Sorkin, Technicaland Legal Approaches to Unsolicited Electronic Mail, 35 U.S.F. L. REV. 325, 327-36(2001).

19. See, e.g., Reuters, FTC Accuses Pop-Up Maker of 'Extortion', CNN.COM, Nov.7, 2003, at http://www.cnn.com/2003/TECH/internet/ 1 1/07/microsoft.popup.reut/index.html.

20. See Stefanie Olsen, Gator Sheds Skin, Renames Itself CNET NEWS.COM, athttp://news.com.com/2100-1024 3-5099212.html (last modified Oct. 29, 2003).

21. See generally Calvin Whang, Comment, An Analysis of California's Commonand Statutory Law Dealing with Unsolicited Commercial Electronic Mail: An Argumentfor Revision, 37 SAN DIEGO L. REV. 1201 (2000).

22. See generally Burk, supra note 4, at 54; Hunter, supra note 3, at 478; Sorkin,supra note 18, at 344-57; Whang, supra note 21.

23. See What is Firewall?, Webopedia Computer Dictionary, at http://www.webopedia.com/TERM/F/firewall.html (last visited Feb. 2, 2004). The Webopedia de-fines "firewall" as

[a] system designed to prevent unauthorized access to or from a privatenetwork. Firewalls can be implemented in both hardware and software,or a combination of both. Firewalls are frequently used to prevent un-authorized Internet users from accessing private networks connected tothe Internet, especially intranets. All messages entering or leaving theintranet pass through the firewall, which examines each message andblocks those that do not meet the specified security criteria.

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mers often employ techniques that circumvent such measures. 24 The prob-lem of spain has reached such magnitude that Congress, after several falsestarts, recently passed the "CAN-SPAM" Act, the first federal statuteaimed at curbing fraudulent and unduly burdensome advertising throughelectronic communications. 25 In addition, services such as Brightmai 26

turn a Yprofit by selling services specifically designed to thwart or interceptspam. The result is a free-for-all between senders of spam, unwilling re-cipients of spam, and third parties seeking to turn a profit by aligningthemselves with or against one side or the other.28

D. Spiders and Robots

Spiders, webcrawlers, and robots are all computer programs that auto-mate the process of cataloguing information available on the web.29 Ahuman web-surfer can peruse pages and copy information of particularinterest. A spider does the same thing, requesting webpages or other datafrom other computers connected to the Internet and combing through suchdata or text for particular information. These requests and data transfersconstitute electronic communication, just like e-mail, instant messages, orother exchanges of information. This activity comprises part of the trafficon the Internet and therefore can contribute to congestion, depending onthe frequency and intensity of the spider's activity.3 °

24. See generally Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1371 n.2 (2003) (Brown,J., dissenting); Sabra-Anne Kelin, Note, State Regulation of Unsolicited Commercial E-Mail, 16 BERKELEY TECH. L.J. 435 (2001); Whang, supra note 21, at 1205-08.

25. See generally Associated Press, Bush Signs Anti-Spain Bill, CNN.CoM, Dec. 16,2003, at http://www.cnn.com/2003/ALLPOLITICS/12/16/bush.bills.ap/index.html; GrantGross, U.S. Senate Approves Antispam Bill, InfoWorld, Dec. 16, 2003, athttp://www.infoworld.com/article/03/10/25/HNantispambill_1.html. The bill was ap-proved on December 19, 2003, and codified at 15 U.S.C. §§ 7701-7713 (2000).

26. See Jones, supra note 17, at 73.27. Id.28. See, e.g., Reuters, FTC Accuses Pop-Up Maker of 'Extortion', CNN.CoM, Nov.

7, 2003, at http://www.cnn.com/2003/TECH/intemet/ 1/07/microsoft.popup.reut/index.html.

29. See generally Stephen T. Middlebrook & John Muller, Thoughts on Bots: TheEmerging Law of Electronic Agents, 56 Bus. LAW. 341 (2000) (describing the technologybehind spiders and laws which bear on automated search and indexing).

30. See, e.g., eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal.2000). Bidder's Edge's robots accessed eBay's site approximately 100,000 times per day.Id. at 1063. While a search engine aggregating website locations and subject matter mightneed to visit a site only periodically to make sure its data is up-to-date, Bidder's Edgewas in the business of aggregating auction data. Id. at 1061-62. Timeliness of informationin an online auction is, of course, critical to bidders, and time-sensitivity is a feature ofmany subjects of online commerce besides auctions. See, e.g., Press Release, Smith


As with e-mail, an entity may employ spiders for good aims or ill pur-poses. Search engines, indispensable in the realization of the Internet'sutility,31 use spiders to aggregate indexing information. 32 But spiders alsoenable spammers to comb webpages for personal and commercial e-mailaddresses that they can add to their distribution lists. 33

II. LEGAL BACKGROUND: PRIOR APPLICATIONS OFTRESPASS TO CHATTELS TO CYBERSPACE

Several years of litigation preceding Hamidi produced a substantialbody of cases which revived the doctrine of trespass to chattels by apply-ing it to Internet activities. 34 Essentially moribund, the tort caught the at-tention of creative attorneys seeking a private cause of action applicable tothe concept of trespass on the Internet. Although metaphors and analogiesrelating cyberspace to real property pervaded academic literature and caselaw, 35 courts began to view such arguments with suspicion during the1990s. 36 But even if analogies comparing cyberspace to real property failunder legal scrutiny, computers still qualify as personal property. Armedwith this reinvigorated doctrine, plaintiffs succeeded in obtaining selectiveinjunctions against outsiders' intrusions on their computers. 37

School of Business Gets $2 Million NSF Grant to Study e-Markets, Robert H. SmithSchool of Business, University of Maryland (Aug. 26, 2002), at http://www.rhsmith.umd.edu/pr/news-nsf.htm.

31. See, e.g., Laura Quilter, Note, The Continuing Expansion of Cyberspace Tres-pass to Chattels, 17 BERKELEY TECH. L.J. 421, 436 (2002).

32. See Maureen O'Rourke, Property Rights and Competition on the Internet: InSearch of an Appropriate Analogy, 16 BERKELEY TECH. L.J. 561, 570-74 (2001).

33. See Jones, supra note 17, at 71-31. For example, a spider may search for textstrings within the code of personal and commercial websites, whether text or HTMLmarkup, that matches the format of an e-mail address. Public, unprotected publishing onthe World Wide Web makes the e-mail address available by default to anyone with Inter-net access.

34. See, e.g., Ticketmaster Corp. v. Tickets.com, No. 99CV7654, 2000 WL 1887522(C.D. Cal. Aug. 10, 2000); eBay, 100 F. Supp. 2d 1058; Am. Online, Inc. v. IMS, 24 F.Supp. 2d 548 (E.D. Va. 1998); CompuServe, Inc. v. CyberPromotions, Inc., 962 F. Supp.1015 (S.D. Ohio 1997); Thrifty-Tel v. Bezenek, 46 Cal. App. 4th 1559 (1996).

35. See Hunter, supra note 3, at 443.36. Id. at 447.37. See generally Burk, supra note 4, at 37 (noting that the harm associated with

spam is "unwanted content, and not some fictional lessening of goodwill or the capacityof the proprietary network," because if the spam were offering something desirable, forinstance "certificates for free beer, or $100 in e-cash-not a word would have beensaid"); Edward W. Chang, Bidding on Trespass: eBay, Inc. v. Bidder's Edge, Inc. and theAbuse of Trespass Theory in Cyberspace-Law, 29 AIPLA Q.J. 445 (2001); Hunter, supranote 3, at 483; Quilter, supra note 31, at 428-36.

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The original tort provided redress for unauthorized use of, or inter-meddling with, the personal property of another. 38 The tort requires proofof intentional physical contact, causation, and the infliction of actual, sub-stantial harm to the chattels. 39 The definitions of "intentional physical con-tact" and "actual harm" underwent radical changes in order to apply thisancient doctrine, more associated with livestock disputes, to the WorldWide Web.

A. Electron Trespass as Physical Trespass

In the 1996 decision of Thrifty-Tel, Inc. v. Bezenek, a case involvingphreaking (unorthodox access to telephone systems) in telephone net-works, a California Court of Appeal held that a flow of electrons is suffi-ciently physical to satisfy the requirement of intentional physical contactfor purposes of Trespass to Chattels. 40 CompuServe, Inc. v. Cyber Promo-tions, Inc. followed in 1997, explicitly applying Thrifty-Tel's doctrine ofelectron trespass directly to electronic communications on the Internet.4 1

But electronic communications of any sort inherently involve this kind ofelectron "trespass," leaving the element of "intentional physical contact"completely trivial when applying trespass to chattels to activity in cyber-space.42

B. Courts Broaden "Actual Harm" to Include "ThreatenedHarm"

"Substantial" actual harm, originally meant harm that amounted tomore than a mere theoretical or de minimis deprivation,43 but when faced

38. Quilter, supra note 31, at 424-26.39. PROSSER AND KEETON ON TORTS § 14, at 85-86 (5th ed. 1984).40. 46 Cal. App. 4th 1559, 1567 n.6 (1996); Burk, supra note 4, at 29 (describing

"phreaking" and the Thrifty-Tel court's reliance on other cases which hold that colloqui-ally "intangible" interferences such as dust or sound waves constitute trespass when theyresult in tangible harm); see also Fairview Farms, Inc. v. Reynolds Metals Co., 176 F.Supp. 178, 186-88 (D. Or. 1959) (holding that advancements in science have allowed forthe apprehension and measurement of gases, shockwaves, and particulates once consid-ered uncertain and intangible for purposes of trespass); Martin v. Reynolds Metals Co.,342 P.2d 790 (Or. 1959) (holding that gases and particulates, while invisible to the nakedeye, can be agents of direct trespass).

41. See CompuServe, Inc. v. CyberPromotions, Inc., 962 F. Supp. 1015, 1021-22(S.D. Ohio 1997).

42. See Burk, supra note 4, at 34 ("Such 'dispossession' by impinging electronsamounts to a rule of inviolability-the equipment was contacted by electrons, nottouched, not damaged, not removed, not rendered inoperable. One wonders where thelimits of such 'trespass by electrons' might lie.").

43. RESTATEMENT (SECOND) OF TORTS § 218 cmt. i (1965) ("A mere momentary ortheoretical deprivation of use is not sufficient unless there is a dispossession.").


with Internet-related cases, courts expanded their interpretations to includethreatened, inchoate harms. Prosser and Keeton write that, despite a "sur-prising dearth of authority" on the lower bounds of the requirement,

IT]he dignitary interest in the inviolability of chattels ... is notsufficiently important to require any greater defense than theprivilege of using reasonable force when necessary to protectthem. Accordingly it has been held that nominal damages willnot be awarded, and that in the absence of any actual damage theaction will not lie.44

The line of cases which expanded actual harms to include threatenedharms involved various uses of spiders or robots. In Register.com, Inc. v.Verio, Inc., defendant Verio used spiders to cull information from Regis-ter.com's publicly accessible database in furtherance of its spamming ac-tivities.45 In eBay, Inc. v. Bidder's Edge, Inc., defendant Bidder's Edgesent spiders 100,000 times daily46 to eBay's site for the purpose of main-taining an online auction data aggregation service.47 In both cases, thecourts found no significant actual harm but granted judgment for the plain-tiffs because of the potential for copycat crime.48 Though actual harm hadyet to occur, these courts found it likely that others would copy the defen-dants' behavior, collectively causing congestion or creating unintendedbut foreseeable denial of service if not preemptively enjoined.49

44. PROSSER & KEETON, supra note 39, at 87. The Restatement (Second) of Tortscontains a comment which says substantially the same thing: "The interest of a possessorof chattel in its inviolability, unlike the similar interest of a possessor of land, is not givenlegal protection by an action for nominal damages for harmless intermeddlings with thechattel." RESTATEMENT (SECOND) OF TORTS § 218, e.

45. 126 F. Supp. 2d238, 249-51 (S.D.N.Y. 2000).46. 100,000 is not necessarily a large number in context. This activity caused no

visible end-user impact on the service. Computer systems vary widely in power and pur-pose, and numbers should always be read with any relevant technical facts in mind. eBay,Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1063-65 (N.D. Cal. 2000).

47. Id. at 1061-62.48. See Register.com, 126 F. Supp. 2d at 250 (quoting Register.com's VP for tech-

nology's declaration, "I believe that if Verio's searching of Register.com's WHOIS data-base were determined to be lawful, then every purveyor of Intemet-based services wouldengage in similar conduct"); see also eBay, 100 F. Supp. 2d. at 1071-72 ("[I]f the courtwere to hold otherwise, it would likely encourage other auction aggregators to crawl theeBay site, potentially to the point of denying effective access to eBay's customers.").

49. See, e.g., Register com, 126 F. Supp. 2d at 252. The court found:[I]t is highly probable that other Internet service vendors would alsouse robots to obtain this potential customer information were it to bepermitted .... If the strain on Registercom's resources generated by

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However, not all courts adopted such lenient standards for inchoateharms. The court in Ticketmaster Corp. v. Tickets.com, Inc. found for thedefendant. 50 Although it noted that no actual harm had occurred, it distin-guished eBay on the ground that in its present case, there was no "specterof dozens or more parasites joining the fray, the cumulative total of whichcould affect the operation of business," implicitly accepting the eBaycourt's interpretation of cognizable harms, only disagreeing as to thethreshold of harm.51

The application of trespass to chattels against senders of spain was notnearly as controversial because the volume of spammers' activities pro-vided straightforward, plausible measurements of actual harm.5 2 TheCompuServe court also found that actual harm had occurred becauseCompuServe's end users experienced significant degradations in utilityand increases in cost.53 These harms resulted from the defendant's activityon CompuServe's chattels, but the inconvenience to end users was cer-tainly one degree removed from the computers' literal physical conditionor functionality.5a

C. Creeping Strict Liability

Scholars, judges, and commentators began to fear a creeping doctrineof strict liability for any unwanted or unsolicited electronic trespass, sincethe plaintiffs were winning most of the cases even when the defendant wasnot sending spain or engaging in spain-related activities. 55 In the absence

robotic searches becomes large enough, it could cause Register.com'scomputer systems to malfunction or crash.

Id.50. Ticketmaster Corp. v. Tickets.com, No. 99CV7654, 2000 WL 1887522, at *4

(C.D. Cal. Aug. 10, 2000).51. Id. The Ticketmaster court was quite cognizant of the holding in eBay, but held

for the defendant, stating that the threat of copycat behavior was too low in this case tofind for the plaintiff.

52. See Hotmail Corp. v. Van$ Money Pie, Inc., No. 98-20064 JW, 1998 U.S. Dist.LEXIS 10729, at *7 (N.D. Cal. 1998); Am. Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d444, 451-52 (E.D. Va. 1998); Am. Online, Inc. v. IMS, 24 F. Supp. 2d 548, 550-51 (E.D.Va. 1998); CompuServe, Inc. v. CyberPromotions, Inc., 962 F. Supp. 1015, 1015 (S.D.Ohio 1997).

53. CompuServe, 962 F. Supp. at 1019.54. See id. at 1022.55. See Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1350 (2003) (quoting the dissenting

justice in the prior decision, who stated that the Court of Appeal's affirmation of the doc-trine's expansion would "expand the tort of trespass to chattel in untold ways and to un-anticipated circumstances"); see also Burk, supra note 4, at 32 (noting that, at the time,the lower court's injunction against Hamidi "further suggests that the claim of 'trespass'is mutating from an innovative claim to deter commercial spain into a more general claim


of any appellate decisions, writers had to speculate as to the doctrine's ul-timate reach. While some writers defended the expanded doctrine's use-fulness in filling a legislative void,56 many more worried that trespass tochattels had been expanded beyond reasonable bounds as a nearly unbri-dled cause of action in cyberspace, capable of defending an interest in in-violability that the old doctrine did not countenance. 57 Even Ticketmaster,despite its relative restraint, still respected eBay's standard of potential orthreatened harm. 58 Writers predicted that continued broad application oftrespass to chattels would eventually create a tragedy of the anticommons,an over-protection of private rights which would hamper basic activitieson the Internet.59

III. INTEL V. HAMIDI: THE CALIFORNIA SUPREME COURT

A. Factual Background

Intel Corporation maintains and operates an intranet,60 which it uses totransmit messages among its employees, its customers, and other third par-

to deter unwanted messages. This change has troubling implications for the free flow ofinformation on the network... ").

56. See, e.g., Mark D. Robins, Electronic Trespass. An Old Theory in a New Con-text, 15 No. 7 COMPUTER LAW. 1 (1998).

57. See generally Burk, supra note 4, at 35 (attributing the expansion of the doctrineto a blurring between the traditional divide between real property law and personal prop-erty law); Hunter, supra note 3, at 487; Quilter, supra note 31, at 440-42. Real propertytrespass recognizes a legally defensible interest in inviolability and injunction is a naturalremedy for this kind of right. It is argued that the power of these remedies should not beallowed to leak into other theories of trespass unless it addresses an interest of similargravity.

58. Quilter, supra note 31, at 433.59. See generally Burk, supra note 4, at 42; Hunter, supra note 3, at 509-14; Quilter,

supra note 31, at 441. Quilter writes,[t]he doctrine has become completely malleable, able to fit any and allsituations. With trespasses as they have now been defined, and withouta harm requirement, it would be difficult to conceive of anything thatmight not constitute a trespass; trespass is effectively defined purely atthe owner's will and can encompass almost any kind of act.

Quilter, supra note 31, at 441. The California Supreme Court also notes academic opin-ions that warn against propertization of the Internet which would have resulted from en-forcement under Intel's theory. Hamidi, 30 Cal. 4th at 1362-63. Anticommons concernswere also anticipated in the literature. For example, Edward Chang states that "cyber-trespass theory will curtail the free flow of price and product information on the Internetby allowing website owners to tightly control who and what may enter and make use ofthe information housed on its Internet site." Chang, supra note 37, at 459.

60. Hamidi, 30 Cal. 4th at 1349 n.1 ("An 'intranet' is 'a network based on TCP/IPprotocols (an internet) belonging to an organization, usually a corporation, accessible

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ties. Though Intel maintains the intranet to facilitate business, its policyalso allows employees to make "reasonable nonbusiness use" of the intra-net.61 Kenneth Kourosh Hamidi, a former Intel employee, had an acrimo-nious falling out with Intel and subsequently founded FACE-Intel (Formerand Current Employees of Intel).62 For a period of over twenty-onemonths Hamidi, as president of FACE-Intel, sent six unsolicited mass e-mails to a list of thousands of addresses.63 The contents of these e-mailscriticized Intel's employment practices, warned employees that work atIntel was damaging to their health and to their careers, encouraged em-ployees to leave Intel and work elsewhere, and invited them to visitwww.faceintel.com. 64 Intel disapproved of the messages, asked Hamidi tostop sending them, and engaged in technical self-help in an attempt toblock the messages.65 Hamidi used techniques similar to those of spam-mers to circumvent Intel's self-help, but did not actually breach any secu-rity barriers or hack into Intel's computers in the process.66 No evidencesuggests that Hamidi's unsolicited e-mails adversely affected the technicalperformance of any part of Intel's computer systems. The missives wereonly e-mails, and the system handled them as it handled all e-mail.67

Though Hamidi refused to heed Intel's requests to cease sending his unso-licited e-mails, he did include within his messages an opt-out provision forthe end recipients, which Hamidi honored.68

B. The Holding

The California Supreme Court held that, in California, the commonlaw tort of trespass to chattels did "not encompass, and should not be ex-tended to encompass, an electronic communication that neither damagesthe recipient computer system nor impairs its functioning." 69 The courtalso stated that the dispositive issue in a case such as this was whether the

only by the organization's members, employees, or others with authorization.'<http://www.webopedia.com/TERM/i/intranet.html> [as of June 30, 2003]. Hamidi usedonly a part of Intel's computer network accessible to outsiders.").

61. Id. at 1346.62. See Ken Hamidi WON, Intel LOST, FACE Intel, at http://www.faceintel.com/

kenwonintellost.htm (last visited Dec. 17, 2003) (providing a comprehensive account ofthis case and its preceding history from Hamidi's point of view).

63. Hamidi, 30 Cal. 4th at 1349, 1356 (noting that the extent of Hamidi's activity isminiscule compared to that of a typical spammer).

64. Id. at 1348-49.65. Id.66. Id.67. Id.68. Id. at 1346.69. Id. at 1347.


activity "caused or threatened to cause damage," in an explicit acceptanceof the doctrine's expansion in eBay, Register.com, and Ticketmaster.

1. Demonstrating Flexibility in the Common Law

The court thus adopted the changes imposed upon trespass to chattelsby federal district courts in California. In so doing, the court recognizedthe need for a limited private cause of action against trespass to personalcomputers. At the very least, the court's decision makes it clear that tres-pass to chattels, though ancient in its lineage, includes trespass to net-worked computers.7 ' Without this adaptation of the common law, indi-viduals would be limited to statutorily-defined theories of relief, which aretypically slow to arrive.72 As a first step, however, this change to trespassto chattels remained consistent with the historical adaptability of trespasslaw to changing times and technologies. If this adaptability to cyberspaceextends to other forms of trespass law, the result may be a doctrine of cy-ber-nuisance. This has the potential to thwart any anticommons problemsthat the Internet and its successors would otherwise face in the future.

2. The California Supreme Court Embraces the Holdings ofPrior Courts

If the California Supreme Court wished to repudiate the trend towardsbreadth in trespass to chattels, it could have done So.73 It instead embracedthe prior decisions-including eBay, which is the most controversial of thespidering cases-and from their holdings harmonized a new threshold ofharm for the tort.

70. Id. at 1353 (emphasis added).71. Id. at 1361 ("The plain fact is that computers, even those making up the Internet,

are-like such older communications equipment as telephones and fax machines-personal property, not realty."). The court made this point and avoided settling the "cy-berspace as real property" debate, and thus, it would actually be quite premature to callthis doctrine "Trespass to Chattels in Cyberspace" given its implicit real-property bias.

72. Legislative progress is notoriously slow, while communications technology hasadvariced rapidly in the past few decades. The motivations for other courts' extensions totrespass to chattels are obvious enough. See Quilter, supra note 31, at 435-36. This is notto say that the legislature has been inactive, however-gridlock and political considera-tions have caused the demise of several federal anti-spain measures. See generally Asso-ciated Press, supra note 25; Gross, supra note 25.

73. Hamidi, 30 Cal. 4th at 1357 n.5 (concluding that a federal magistrate judge inOyster Software, Inc. v. Forms Processing, Inc., No. C-00-0724 JCS, 2001 U.S. Dist.LEXIS 22520, at *37-38 (N.D. Cal. Dec. 6, 2001), "incorrectly read eBay as establishing,under California law, that mere unauthorized use of another's computer system consti-tutes an actionable trespass" and that the court did "not read eBay ... as holding that theactual injury requirement may be dispensed with").

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a) Trivial Trespass: Electronic Communication is IntentionalPhysical Trespass

The court implicitly accepted the theory of trespass by electrons with-out substantive criticism. At no time during its review of electronic tres-pass cases, including telephone,74 spamming,75 and spidering cases76 didthe court question whether trespass by electrons legally satisfied the inten-tional physical trespass element. If the court had decided to reject the the-ory, it could not have endorsed any of these cases as good law and wouldnot have even needed to analyze the issue of harm to find for Hamidi.

b) Expanded Harms: Either Actual Harm or Threatened HarmSufficient to Sustain Cause of Action

By focusing on the holdings of the spidering cases, the court also en-dorsed the expansion of the requirement of actual harms to include physi-cal harms. As noted above, no evidence supported a finding of substantialor actual harm in eBay, Register.corn, or Ticketmaster. Though fact pat-terns varied in each of these cases, a common thread was the courts' de-terminations of the probability or improbability of "copycat crime." eBayand Register.com held for the plaintiffs because the courts believed thatthey would suffer from overwhelming copycat activity if they lost theircases. 77 Ticketmaster found copycats situationally unlikely and held forthe defendant.

78

74. Id. at 1353 (discussing Thrifty-Tel v. Bezenek, 46 Cal. App. 4th 1559 (1996)).75. Id. at 1353-54 (discussing Am. Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444

(E.D. Va. 1998); Am. Online, Inc. v. IMS, 24 F. Supp. 2d 548 (E.D. Va. 1998); HotmailCorp. v. Van$ Money Pie, Inc., No. C 98-20064 JW, 1998 U.S. Dist. LEXIS 10729 (N.D.Cal. Apr. 16, 1998); CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015(S.D. Ohio 1997)).

76. Id. at 1354-56 (summarizing "unauthorized robotic data collection" in Regis-ter.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000); Ticketmaster Corp. v.Tickets.com, No. 99CV7654, 2000 WL 1887522 (C.D. Cal. Aug. 10, 2000); eBay, Inc. v.Bidder's Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000)).

77. Register.com, 126 F. Supp. 2d at 251-52; eBay, 100 F. Supp. 2d at 1071-72.78. Ticketmaster.com, 2000 WL 1887522, at *4.


IV. FIRST STEPS TOWARD A DOCTRINE OF CYBER-NUISANCE

A. Legal Primer: The Real Property Doctrine of Private Nuisance

The nuisance doctrine has its genesis in real property law, 79 but em-bodies an economic rule of conduct, consequences, and context that wouldmake an excellent foundation for a rule of liability in cyberspace. Nui-sance evolved to handle "nontrespassory" invasions of the public or pri-vate interest in the use and enjoyment of land.80 A modem understandingof physics blurs the line between actions that qualified traditional trespass,such as bodily intrusion and bricks thrown through windows and "intangi-ble" invasions now understood to be "physical," such as particulate matter(smog, industrial fumes) and electromagnetic energy. 81 The semantic nice-ties of "invasion" or "interference" and the involvement of real propertyserve as the gatekeepers to this doctrine, which otherwise is chiefly con-cerned with aggregate social utility and efficient economic outcomes.8 2

79. RESTATEMENT (SECOND) OF TORTS § 822 cmt. b (1965) (discussing the growthof modem nuisance doctrine from the former rule of strict liability articulated in Fletcherv. Rylands, L.R. 1 Ex. 265 (1866), and affirmed in Rylands v. Fletcher, L.R. 3 E. & I.App. 330 (H.L. 1868)). Early in its history, strict liability encompassed some of the legalterritory covered by nuisance law. Strict liability's doctrinal inflexibility was incompati-ble with the realities of the then-dawning Industrial Age, and so the nuisance doctrinedeveloped, a sensible compromise necessitated by the proximity and press of modemliving. See RESTATEMENT (SECOND) OF TORTS § 822 cmt. f ("Not every intentional andsignificant invasion.., is actionable, even when he is the owner of the land in fee simpleabsolute .... Life in organized society and especially in populous communities involvesan unavoidable clash of individual interests."). A similar development is presently in theworks, as the previous extensions of TTC in cyberspace began establishing a doctrine ofnear-strict liability. Only Ticketmaster and eBay suggested any resistance to this trenduntil Hamidi's authoritative limitations. See Ticketmaster, 2000 WL 1887522 at *4; eBay,100 F. Supp. 2d at 1065-66. The earlier cases could be seen as an Information Age analogto Fletcher v. Rylands, which was an early doctrine of strict liability developed for asituation in which there was no established tradition of case law. See, e.g., Am. Online,Inc. v. IMS, 24 F. Supp. 2d 548; CompuServe, 962 F. Supp. 1015; Thrifty-Tel, 46 Cal.App. 1559. But the aggregate realities of the Internet demand a rule of give and take, sothe common law must move past cyberspace's Fletcher v. Rylands and into the land ofnuisance.

80. See RESTATEMENT (SECOND) OF TORTS § 822 cmt. a.81. Fairview Farms, Inc. v. Reynolds Metal Co., 176 F. Supp. 178, 186-88 (D. Or.

1959).82. RESTATEMENT (SECOND) OF TORTS § 829 cmt. d, illus. 2 states:

A and B own small farms on the outskirts of a village. Their farms areon opposite sides of a highway and their residences are directly oppo-site one another and about 75 yards apart. A makes a practice of breed-ing livestock in his front yard and in full view of persons in the front

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An action for private nuisance arises when an activity or invasion isboth intentional and unreasonable. 83 The determination of unreasonable-ness is principally an economic question, turning upon whether the gravityof the harm caused by the defendant's conduct outweighs its social, or ag-gregate, utility.84 Unreasonableness alternatively may exist if the activityis meritorious but the defendant fails properly to internalize the costs ofhis activity, thereby imposing a negative externality on society in additionto whatever social utility his activity provides. 85 Section 827 of the Re-statement Second of Torts lists five disjunctive86 factors which weigh thegravity of the harm caused by the defendant's conduct in context:

rooms of B's house. This is a source of considerable annoyance andembarrassment to B and his family. A's conduct is indecent and he issubject to liability to B.

Id. Section 829 states that an actionable nuisance can consist solely of sight and sound,when the principle object of the conduct is to cause harm to the other or is contrary tocommon standards of decency. Id. § 829.

83. Id. §§ 822, 825-31. These balancing tests to not apply to unintentional conduct,which was not at issue in Hamidi. Nuisance doctrine deals with such questions sepa-rately. See id. § 822(b) cmt. a. The legislature may deem certain activities, even if unin-tentional, to be inherently unreasonable, which obviates the need for a nuisance analysis.Judicial rules for determining unreasonableness otherwise reside in §§ 519-20. See alsoid. § 822 cmt. j. Some courts, often informally, consider certain activities so inherentlyrisky that they apply a standard similar to strict liability. Though damages for worms,viruses, and hacker intrusions are usually adjudicated under the Computer Fraud andAbuse Act, 18 U.S.C. § 1030 (2000), it stands to reason that such activities that have thepower to cripple the Internet and inflict billions of dollars in damage or endanger humanlife in the hundreds or more would qualify as ultrahazardous activities. See, e.g., PhilipW. Esbenshade, Hacking: Juveniles and Undeterred Recreational Cybercrime, 23 J. Juv.L. 52, 58 (2003) (describing an incident where another juvenile hacker unwittingly shutdown the FAA control tower at Worcestor airport); Rebecca Allison, Hacker Attack LeftPort in Chaos, GUARDIAN UNLIMITED, Oct. 7, 2003 (detailing a case being heard in theUK, where a 19-year-old hacker disabled a major Texas port through a denial-of-serviceattack intended only for one individual user's computer; the interconnected, relativelydecentralized structure of the Internet makes it all the more likely that a denial-of-serviceattack may have serious but unanticipated consequences), at http://www.guardian.co.uk/online/news/0,12597,1057454,00.html. The creation and release of malicious virusesmight also be considered ultrahazardous activities. See, e.g., Melissa Virus Creator Jailed,BBC NEWS, May 2, 2002, at http://news.bbc.co.uk/l/hi/world/americas/1963371.stm;House Science Subcomm. on Tech., The Love Bug Virus: Protecting Lovesick Computersfrom Malicious Attack (May 10, 2000), available at http://www.nist.gov/hearings/2000/lovebug.htm.

84. RESTATEMENT (SECOND) OF TORTS §§ 822(a), 826(a).85. Id. § 826(b). But see id. § 830 cmt. c, illus. 2, 3 (noting that if the defendant rea-

sonably internalizes the costs to the extent possible, he may not always be liable eventhough the conduct causes both utility and harm).

86. The Restatement suggests:


the extent of the harm involved;the character of the harm involved;the social value that the law attaches to the type of use or enjoy-ment invaded;the suitability of the particular use or enjoyment invaded to thecharacter of the locality; andthe burden on the person harmed of avoiding the harm. 7

Still, the defendant's conduct may be excused or justified if it does moregood than harm. Section 828 lists three conjunctive88 factors which ana-lyze the utility of the defendant's conduct:

the social value that the law attaches to the primary purpose ofthe conduct;the suitability of the conduct to the character of the locality; andthe impracticability of preventing or avoiding the invasion.89

B. First Steps Toward a Nuisance Doctrine in Cyberspace

Several parts of the court's analysis, especially those sections justify-ing the expansion of traditional thresholds, resounded with reasoning thatwould be appropriate under an analysis of nuisance. At least one othercourt had read past case history to mean that trespass to chattels embodied

Since the gravity of harm is its seriousness from an objective stand-point, it is the product of all relevant factors. There is no general rule asto the relative weight of the particular factors in all the ever-varyingcases .... The list of factors here stated is not intended to be exhaus-tive.

Id. § 827 cmt. b.87. Id. § 827(a)-(e).88. Id. § 828 cmt. c.

It is only when the conduct has utility from the standpoint of all thefactors as a whole that its merit is ever sufficient to outweigh the grav-ity of the harm it causes. If the conduct has no utility from the stand-point of one of the factors, the fact that it has utility from the standpointof other factors is not controlling.

Id. (emphasis added). Supposing for the sake of argument that nuisance does apply tocyberspace, if an ISP were to send a mail bomb back to a spammer, it would fail this testoutright. The ISP nonetheless may attempt to excuse its retaliatory self-help by arguingthat the social value the law attaches to the use or enjoyment invaded-a spammer's ca-pacity to attack spain-has almost no social value, and that a spammer could easily avoidthe retaliation by not subjecting the ISP and its customers to outrageous amounts of spamin the first place.

89. Id. § 828(a)-(c).

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a rule approaching strict liability, a ruling which the California SupremeCourt authoritatively denounced in Hamidi.91

1. Employing Nuisance-Like Reasoning

Proper analysis of actual harms under trespass to chattels is a quantita-tive discipline that emphasizes categorical rules and measurable effects,but the substance of the court's opinion emphasizes utilities and harms in amanner reminiscent of the balancing tests in the nuisance doctrine.92 Lit-erature analyzing the traditional doctrine of trespass to chattels states thatdeprivations must occur for a substantial or measurable period of time andcannot be merely theoretical.93

a) The Gravity of the Harm (§ 827)

The court noted that though Hamidi employed evasive tactics in send-ing his UCEs to Intel's servers, he never actually breached any securitybarriers.94 This fact has relevance in the calculation of damages only in thenegative because the calculation of employee time and resources spent indeleting Hamidi's e-mails from the system could not contain figures fortime and resources not expended on damages that did not occur. The courtimplicitly made value judgments on the nature of Hamidi's behavior thatwould weigh upon the extent and the character of the harm involved. 95

The court also noted that the extent of the harm of Hamidi's conduct wasminiscule compared to the impact of a typical spammer's activity, whichwas the cornerstone of its finding in favor of Hamidi under trespass tochattels.

96

90. Oyster Software, Inc. v. Forms Processing, Inc., No. C-00-0724 JCS, 2001 WL1736382 (N.D. Cal. Dec. 6, 2001).

91. Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1357 n.5 (2003).92. See generally PROSSER & KEETON, supra note 39; RESTATEMENT (SECOND) OF

TORTS § 218. The Restatement notes that for an interference or intermeddling to give riseto an action, the deprivation of use "must be for a time so substantial that it is possible toestimate the loss caused thereby. A mere momentary or theoretical deprivation of use isnot sufficient unless there is a dispossession." RESTATEMENT (SECOND) TORTS § 218.

93. See RESTATEMENT (SECOND) OF TORTS § § 218-19.94. Hamidi, 30 Cal. 4th at 1346, 1349, 1353.95. Recall that these are the first two listed factors weighing against the defendant's

activity or behavior. RESTATEMENT (SECOND) OF TORTS § 827(a)-(b).96. Hamidi, 30 Cal. 4th at 1356.


b) The Utility of the Conduct (§ 828)

i) Social Value and Purpose

For the defendant to justify or excuse his activity, the law must attachsome social value to the primary purpose of the conduct. 97 The court didnot decide Hamidi on First Amendment grounds,98 but there was a hint ofsimilar sympathy in the court's characterization of Hamidi's UBEs as "oc-casional advocacy messages," not spain. 99

ii) Suitability

Secondly, the court must consider the suitability of the conduct to thecharacter of the locality.' 00 The court placed special emphasis on the factthat Hamidi merely used an e-mail system connected to the Internet for thetransmission of e-mail. Specifically, the court found that Hamidi did notuse Intel's system "in any manner in which it was not intended to function....9,,A01 Intel's e-mail system was equipment designed for speedy com-munication between employees and the outside world; Hamidi communi-cated with Intel employees over that system in a manner entirely consis-tent with its design."' 0 2 The court had no need to make statements such asthese in an analysis of damages. Within the confines of trespass to chattelsdoctrine, it would have sufficed to say that the effect of six UBEs intwenty-one months consumes negligible storage space and computingpower. 10 3 Applied to nuisance analysis, however, these statements would

97. RESTATEMENT (SECOND) OF TORTS § 828(a).98. Hamidi, 30 Cal. 4th at 1364-65. First Amendment issues were important to a

number of people working on this case. Hamidi considered them the most important as-pect of the case and was disappointed that the court chose not to answer these questions.See Ken Hamidi WON, Intel LOST, supra note 62.

99. Hamidi, 30 Cal. 4th at 1356.100. THE RETATEMENT (SECOND) OF TORTS § 828(b).101. Hamidi, 30 Cal. 4th at 1353.102. Id. at 1360-61 n.7. The Court also stated,

Intel connected its e-mail system to the Internet and permitted its em-ployees to make use of this connection both for business and, to a rea-sonable extent, for their own purposes. In doing so, the company neces-sarily contemplated the employees' receipt of unsolicited as well as so-licited communications from other companies and individuals. Thatsome communications would, because of their contents, be unwelcometo Intel management was virtually inevitable.

Id. This language should bring to mind the "give-and-take," "live and let live" characteri-zations in RESTATEMENT (SECOND) OF TORTS § 822 cmt. g.

103. Hamidi, 30 Cal. 4th at 1356.

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reduce the weight of harm in the context of the "suitability of the conductto the character of the locality."' 0 4

iii) Unavoidable/Unpreventable Harm

Finally, there must be some impracticability of preventing or avoidingthe invasion, without which the defendant cannot excuse his conduct de-spite its value, as otherwise the defendant inflicts unnecessary harm.' 0 5

The court noted that Intel's employees would have had an easy time opt-ing out of Hamidi's mailings, as Hamidi made this option explicit andgenuine in the content of his UBE. 10 6 The court in effect emphasized thatthe burden on the person harmed of avoiding the harm'0 7 was slight, andhence, the harm was also small. 10 8 Certainly, Hamidi could have avoidedcompletely any distraction to Intel's employees by not sending the UBE.Still, by including an opt-out provision in his messages, Hamidi went tolengths to notify recipients of their right to refuse further missives and hiswillingness to abide by their wishes, which demonstrates respect for theintent behind § 828(c).' 0 9

2. Rigid Categorization: This is Still Not Cyber-Nuisance

Fundamentally, trespass to chattels still only protects possession andrelated interests in personal property. Though the analysis in Intel v.Hamidi often sounds like nuisance-based reasoning, the decision does notrest primarily upon balancing economic efficiency or social utility, butupon categorical pronouncements of what constitutes "harm" and "inter-ests" under the rules of the tort. 110 Thus, the decision does not actuallycreate a common-law doctrine of cyber-nuisance under the name of tres-pass to chattels. The court made rigid and categorical rejections of em-

104. RESTATEMENT (SECOND) OF TORTS § 828(b).105. Id. § 828(c).106. Hamidi, 30 Cal. 4th at 1346, 1349.107. RESTATEMENT (SECOND) OF TORTS § 827(e).108. Hamidi, 30 Cal. 4th at 1352-53.109. RESTATEMENT (SECOND) OF TORTS § 828 cmt. h. This comment on clause (c)

states,An invasion is practicably avoidable by the actor if the actor by somemeans can substantially reduce the harm without incurring prohibitiveexpense or hardship. Thus, if the actor can carry on his activity withmore skill or care or in a different manner or at a different time andthereby avoid a substantial part of the harm without substantially di-minishing the value of his own enterprise, the invasion is practicablyavoidable.

Id.110. Hamidi, 30 Cal. 4th at 1352-53, 1356, 1358-60.


ployee time and productivity as interests in the "condition, quality, orvalue" of the computer system."' Therefore, practitioners seeking to em-ploy trespass to chattels against unwanted electronic communications mustbe able to identify a defensible interest attaching tightly to the basic inter-est of possession; an interest too tangential or remote from possession ortechnical performance is likely to face dismissal. Nuisance law counte-nances no such rigidity; "enjoyment and use" covers any legally protect-ible interest, weighted by utility and harm. 12

The court kept trespass to chattels lashed to its foundations, despitesome newfound flexibility. It dismissed several metaphors equating cyber-space and real property" 3 and flatly stated that "computers, even thosemaking up the Internet, are ... personal property, not realty."' 1 4 Thoughtrespass to chattels has been extended to include trespass to networkedcomputers, this did not create a distinct theory of trespass via cyberspace.In addition, the court categorically rejected characterizations of employeetime and attention as interests in computers or their functionality. 15 Thecourt also viewed the loss of consumer goodwill and economic revenuesrecognized by the CompuServe court with suspicion." 6 Common sensesuggests that the user or owner of a personal computer has an interest in amailbox free of spam and a computer free from unwanted spyware, 1 7 butIntel's complaint was only indirectly related to the computer system'sfunctional condition.1 8 Even so, quantities of spam and pop-ups will harma private user's utility long before the computer itself suffers actual degra-

111. See RESTATEMENT (SECOND) OF TORTS § 218(b).112. In economic terms, these are benefits and costs, respectively. See generally Jo-

SEPH W. SINGER, PROPERTY LAW 322-23 (3d ed. 2002).113. Hamidi, 30 Cal. 4th at 1360-61.114. Id. at 1361 (describing networked computers as being literally similar to other

communications networks, like telephones and fax machines, whereas comparison ofsuch computers to real property requires a metaphor).

115. Id. at 1347, 1359. ("Whatever interest Intel may have in preventing employeesfrom receiving disruptive communications, it is not an interest in personal property, andtrespass to chattels is therefore not an action that will lie to protect it."). As part of thisargument, the California Supreme Court quoted Burk, supra note 4, at 36: "The Restate-ment test clearly speaks in the first instance to the impairment of the chattel .... But em-ployees are not chattels (at least not in the legal sense of the term)." Hamidi, 30 Cal. 4th.at 1359.

116. Id. at 1357-59.117. See generally Whang, supra note 21, at 1203-04; John Simons, The Battle over

Spare Gets Ugly, U.S. NEWS & WORLD REP., May 12, 1997, at 55.118. Hamidi, 30 Cal. 4th at 1348, 1353 ("In the present case, the claimed injury is

located in the disruption or distraction caused to recipients by the contents of the e-mailmessages, an injury entirely separate from, and not directly affecting, the possession orvalue of personal property.").

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dation in performance. 1 9 The receipt of several thousand pieces of spamin one's mailbox might not noticeably affect a computer's technical per-formance, but it does reduce the usefulness of the e-mail system to theuser.

C. Historical Parallel: The Development of the Original NuisanceDoctrine

Intel v. Hamidi added another page in a story that mirrors the devel-opment of the original doctrine of private (real-property) nuisance from itsbeginnings in strict liability. Fletcher v. Rylands originally established adoctrine of strict liability for trespass to land. 120 This doctrine did notstand unmodified in the face of technological progress. Over time, courtsincorporated rules of context and economically-motivated balancing testsinto the doctrine, changing it from a landowner's weapon into a mecha-nism designed to safeguard the economic goals of aggregate utility maxi-mization and cost internalization. 12' For instance, a Texas court held thatabove-ground reservoirs, which Rylands v. Fletcher did not consider a"natural use of the land" in England, were, in fact, a necessary and there-fore natural use of Texan land, given the realities of Texan climate. 22 Anda series of cases decided during and after the Industrial Revolution repudi-ated strict liability except in cases of negligence, recklessness, or inher-ently dangerous activities because the proximity and congestion character-istic of an increasingly mechanized, industrialized urban life demandedthat everyone accept a degree of give-and-take. 123

119. See eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1071-72 (N.D. Cal.2000). Also, some pop-up ads can be so aggressive as to render the computer unusableuntil it is rebooted or until the user performs an action dictated by the pop-up maker.Though the computer may still have memory or processing power available for othertasks, the user's ability to enter input or access desired programs may be wholly dis-rupted. See, e.g, Shields v. Zuccarini, 254 F.3d 476, 479-80 (3d Cir. 2001) (affirming ajudgment against the defendant for cybersquatting). In conjunction with cybersquatting,the defendant in designed sites that "mousetrapped" visitors, rendering them "unable toexit without clicking on a succession of advertisements." Id.

120. Fletcher v. Rylands, L.R. 1 Ex. 265 (1866). The court in Fletcher held thatthe person who for his own purposes brings on his lands and collectsand keeps there anything likely to do mischief if it escapes, must keepit in at his peril, and, if he does not do so, is prima facie answerable forall the damage which is the natural consequence of its escape.

Id.121. Martin v. Reynolds Metals Co., 342 P.2d 790, 790 (Or. 1959).122. Turner v. Big Lake Oil Co., 96 S.W.2d 221 (Tex. 1936).123. See RESTATEMENT (SECOND) OF TORTS §§ 822 cmt. b, 828 cmt. g (1965); see

also Spano v. Perini Corp., 250 N.E.2d 31 (N.Y. 1969) (abolishing the former distinctionbetween "debris" as a tangible agent of trespass and "concussion" as an intangible which


Context, cost internalization, and network benefits are all concerns thatfavor the development of a doctrine of cyber-nuisance. Whereas nuisancein real property usually affects only neighbors or other landowners in theimmediate geographical vicinity, on the Internet, everyone is just an IPaddress away. This interconnectedness magnifies network benefits-andnetwork harms. That many activities on the Internet have both highly pro-ductive and highly destructive uses makes the inclusion of context, costs,and benefits indispensable for fair and efficient adjudications.

The greatest obstacle to the development of cyber-nuisance lies in theformalistic objection that one should not equate cyberspace with realty andthat nuisance is, by lineage, a real-property doctrine. Despite this formalis-tic obstacle, the efficiency aims that comprise the underlying principles ofnuisance apply aptly to the problems of inherently communal cyber-space.124 The networked nature of the Internet leads to the conclusion thata balancing of benefits and harms will achieve results that are superior tothe overdeterrence threatened by bright-line rules.125

V. COMPARATIVE ANALYSIS: CYBER-NUISANCE VERSUSTRESPASS TO CHATTELS

A. Give-and-Take: Nuisance Is the Preferable Rule of AggregateUtility, While Trespass to Chattels Is Provincial and Absolutist

Trespass to chattels exists to defend possession and related harms, andits harm-based analysis focuses on literal damages but asks few questionsas to the worth of the trespassory activity. 126 Had the Ticketmaster courtemployed the California Supreme Court's analysis, it could not have per-mitted or justified defendant Tickets.com's activity simply because Tick-ets.com furnished more good (data aggregation that facilitates comparisonshopping) than harm (light activity on Ticketmaster's website) to thecommunity. The theory of trespass by electrons, by its very scope, impli-cates all electronic communications, and as a strict damages analysis,

will not support a claim of trespass). Use of the Internet and networked computers forelectronic communications would appear to be a "natural use" of such a system, qualifiedby context. The California Supreme Court states that occasional unwanted communica-tion is inevitable when a computer or system is connected to a network as large as theInternet. Hamidi, 30 Cal. 4th at 1359-60. And frequently, as in the case with personal e-mail, unsolicited communication is often welcome.

124. SINGER, supra note 112, at 325-31.125. Recall the "tragedy of the anticommons" described by Hunter, supra note 3.126. See PROSSER & KEETON, supra note 39, at 85-87. Though there is some analysis

as to the trespasser's intent or purpose, the analysis deals more with questions of culpa-bility or thresholds than it deals with utility or defenses.

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wholly controls liability. But use of a spider to aggregate data for searchengines or comparison shopping and use of a spider to collect e-mail ad-dresses for facilitating spam should be treated differently, though the tech-nical impact of their activity on the visited sites may be similar. Trespassto chattels examines only the harm to the property's owner; the doctrinedoes not address network harms or benefits.

B. Hamidi: Speech and Advocacy

Assume for the moment that a nuisance doctrine in cyberspace ex-ists. 127 Hamidi's FACE-Intel messages dance on the borderline of UBEversus UCE; Hamidi undoubtedly received some measure of personal sat-isfaction in the activity and its results, and the court still recognized an as-pect of "advocacy" in his speech without a detailed analysis of FirstAmendment concerns.' If the court had considered the speech argumentunder nuisance, it would have had to consider the social value of Hamidi'sspeech. 129 The court did not endorse using electronic communication as ameans of harassment, but noted that if Intel wished to object to the contentor consequences of Hamidi's speech, it had other avenues of relief.1 30

Connecting an intranet to the Internet results in inevitable give-and-take and requires a degree of reasonable tolerance sufficient to grantHamidi leeway under § 828(b). 131 Moreover, Hamidi mitigated the burdenof his conduct upon his audience to the extent possible through an opt-outpolicy, satisfying § 828(c). In general, the extent of the harm of Hamidi's

127. As noted, the only reason why nuisance does not already apply to the Internet isbecause by tradition it has always been a doctrine protecting "use and enjoyment ofland." RESTATEMENT (SECOND) OF TORTS § 827. Therefore, either nuisance must be ex-pressly expanded to include electronic communications in cyberspace (the preferableroute) or the academic debate over Cyberspace as Place must be resolved in favor oftreating cyberspace as real property (undesirable due to anticommons concerns).

128. See Hamidi, 30 Cal. 4th at 1356.129. Id. at 1364-65. The court said nothing specific about the value of Hamidi's

speech per se. Its brief discussion of constitutional concerns implied that it would havedecided in Hamidi's favor. The court offered no opinion as to whether the content ofHamidi's speech was valuable, nor did it suggest that he had an absolute right to use theInternet as an avenue of expression. The court based its dicta on two facts: that Intel hadrecourse to self-help, and that it does not find the constitutional right "not to listen" togrant an employer the right to decide when its employees should or should not listen. Id.;see also RESTATEMENT (SECOND) OF TORTS § 828(a) (providing commentary and exam-ples on evaluating the "social value" the law attaches to the defendant's conduct).

130. Hamidi, 30 Cal. 4th at 1347-48.131. See id at 1359-60; RESTATEMENT (SECOND) OF TORTS § 822 cmt. g. This also

implicates § 828(b) because Hamidi's conduct was not beyond the extent of unwantedcommunications that Intel would expect from connection to the Internet.


conduct under § 827 is quite low.' 32 Therefore, the weighing of harms andbalances under nuisance would also result in a finding for Hamidi. Notealso that if Hamidi's activities achieved a volume approaching commercialspain, a court applying nuisance would find the gravity of the harms under§ 827 sufficient to justify enjoining Hamidi. Such conduct would havegone inexcusably beyond what is needed for the dissemination of speech,and as a matter of policy, the extension of unbounded spamming rights toeveryone with a private opinion would encourage waste of Internet re-sources. Intel's employees are not chattels and neither is Intel's interest intheir time, 133 but nuisance measures the value of conduct, use, and enjoy-ment, not just the right of possession.134 Hamidi's e-mails are neither cate-gorically condoned nor forbidden, but weighed in context.

C. Spidering: eBay, Ticketmaster, and Register.com Revisited

Nuisance would handle the spidering cases with greater factual consis-tency than trespass to chattels because its analysis pays heed to the pur-poses of the spidering. Although the California Supreme Court managedto synthesize a rule from these cases, the outcomes remain awkward. eBayand Ticketmaster both involve defendants who employ spiders to performdata aggregation services thereafter made available to the public.' 35 Inboth cases, the impact was too small to result in actual harm, yet courtsfound threatened harm cognizable in eBay but not in Ticketmaster.136 A"specter" of copycat auction aggregators was deemed likely, but not aspecter of copycat ticket sales aggregators. Why? The Register.comcourt's concern about copycat spammers is legitimate because spammersdo not curtail their activities unless an outside agency imposes penaltieson their behavior, and spammers are not known for their concern about theimpact of behavior beyond their own profit margins or liability for dam-

132. Hamidi, 30 Cal. 4th at 1355-56.133. Id. at 1359.134. See RESTATEMENT (SECOND) OF TORTS §§ 822, 828.135. Ticketmaster Corp. v. Tickets.com, No. 99CV7654; 2000 WL 1887522, *2

(C.D. Cal. Aug. 10, 2000); eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1061-62 (N.D. Cal. 2000).

136. Id.

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ages. 137 But how many data aggregators are likely to enter the same mar-ket, where profits derive from competitive popularity of use? 138

A nuisance analysis would capture this concern under § 828 or itsequivalent. Section 828(a) addresses the social value that the law attachesto the primary purpose of the conduct. Search engines have proven valuein cyberspace and have contributed immensely to the utility of the Inter-net.139 But when the primary purpose of the spidering is to facilitate spam,the outcome of an application of § 828(a) is clear: the law attaches verylittle social value to spain. Many states have already enacted anti-spainstatutes, with some even imposing criminal liability for failure to complywith provisions that facilitate opt-out mechanisms, 40 and the CAN-SPAMAct, which also provides for per-violation fines for spain-related offenses,was approved on December 19, 2003.141 This factor alone would beenough to halt fraudulent or misleading spain under nuisance without re-gard to the resultant degree of harm. 14 Section 828(c) also examines the

137. See Jones, supra note 17, at 70-72 (sending spam is so inexpensive that even a

low response rate gives a better return on marketing over the Internet than through junk

mail). Much of the cost of dealing with spam is not borne by the spammers themselves,

and this failure to internalize the cost of their activity upon the end user results in a pre-

dictable, empirically obvious overproduction of spam.138. Many businesses may pursue the same market, but the field becomes highly

competitive. Revenue models employed in Internet business have evolved from support

via advertising revenue to actual e-commerce involving fees, transactions, and the sale of

actual goods. The result is a crowded space, where generally a few firms pursue similar

revenue models but in different fields, waging a constant battle to maintain name recogni-

tion. See generally Gary P. Schneider, Chapter 3: Selling on the Web: Revenue Models

and Building a Web Presence, in ELECTRONIC COMMERCE (3d ed. 2002), available at

http://www.course.com/downloads/mis/ecommerce3eoc/ch03.cfm.139. Quilter, supra note 31, at 424 ("[L]ocating any information on the Internet

would be an almost impossible task without search engines such as Google, Yahoo, orFindLaw.").

140. See Kelin, supra note 24, at 441-49.141. See 15 U.S.C. §§ 7701-7713 (2000). The chapter is titled "Controlling the As-

sault of Non-Solicited Pornography and Marketing" and leaves no doubt as to the con-

temporary target of the legislation. The act does not make spam illegal per se, but § 7703

imposes mandatory opt-out provisions and prohibits "predatory and abusive commercial

e-mail." Section 7704(b) targets other techniques including use of spidering and diction-ary attacks as "aggravated violations" when employed in preparation for or execution of

spamming activities.142. RESTATEMENT (SECOND) OF TORTS § 828 cmt. c (1965).

It is only when the conduct has utility from the standpoint of all of the

factors as a whole that its merit is ever sufficient to outweigh the grav-

ity of the harm it causes. If the conduct has no utility from the stand-point of one of the factors, the fact that it has utility from the standpointof other factors is not controlling.


impracticability of preventing or avoiding the invasion, which would forcespammers to comply with any statutes that govern their behavior or facenuisance liability. Compliance with several current statutes is often trivial.For instance, one statute merely requires that the first characters in thesubject header be "ADV:", which allows any user of e-mail to employ afilter that automatically screens out every such message. 143 It would bedifficult for a spammer to prove that this requirement imposes an unrea-sonable burden.

Nuisance is also versatile with respect to remedies, with both damagesand injunctions available.1 45 Bidder's Edfe provided a useful service, butdid not pay for the impact of its activity. 146 Nuisance analysis would findin favor of Bidder's Edge's spidering under equivalents to § 827(a) and (b)since actual harm was not substantial, and under § 827(d) because spider-ing is a form of electronic communication that has long existed as an ele-ment of other useful information services. The relative lightness of theharm weighs against the utility of the conduct. Section 828(a) would as-cribe significant value to theprimary purpose of the spidering, in this caselegitimate data aggregation. Bidder's Edge would only fail § 828(c) fornot paying for the impact of its activity on eBay's servers, but the nuisancedoctrine would encourage damages instead of an injunction, allowing so-ciety to enjoy the benefits of Bidder's Edge's service while Bidder's Edgeinternalizes its costs. 148

Id.143. See CAL. Bus. & PROF. CODE § 17538.4(g) (West 1997 & Supp. 2003); Kelin,

supra note 24, at 444-49.144. But see Jones, supra note 17, at 76-77. The statement is true if the various spam

regulations are internally consistent; if one jurisdiction requires that the message headerbegin with "ADV:" and another jurisdiction requires that the message header begin with"XXXSPAM:" then literal compliance with both will prove tricky if not impossible. Thisis a strong argument for preferring a federal anti-spain statute enabled by the CommerceClause over separate and potentially inconsistent state commercial e-mail statutes.

145. See RESTATEMENT (SECOND) OF TORTS §§ 822, 827, 828 cmt. h, 830.146. See eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1071 (N.D. Cal.

2000); see also RESTATEMENT (SECOND) OF TORTS § 830 (discussing the balancing con-sideration regarding the defendant's attempt to mitigate the harm imposed by his or herconduct). Even when the overall utility of a defendant's conduct may outweigh the harmit inflicts, this does not by itself excuse the defendant from a duty reasonably to mitigatethat harm. See RESTATEMENT (SECOND) OF TORTS § 803.

147. See Quilter, supra note 31, at 424.148. See generally SINGER, supra note 112, at 325-3 1.

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VI. CONCLUSION

The California Supreme Court clarified the newly revived doctrine oftrespass to chattels in a way that achieved consistency with the majority ofprior case history and harmony with the concerns of economic efficiencyand freedom of expression. The expansion reflected the need for ready re-lief against network congestion in a technology characterized by rapid ad-vances and geometric growth. The court also restricted the tort, anchoringit to its traditional foundation as a means for defending possession in per-sonal chattels, and thereby forestalled the rise of a crippling rule of strictliability in cyberspace. Though a landmark decision in tort law, Intel v.Hamidi does not end the controversy regarding trespass law in cyberspace.Rather, it highlights the limitations of one doctrine and encourages furtherdevelopment of a responsible doctrine that prefers an efficient balancingof rights to an awkward system of rigid rules and absolute interests. Lawhas historically moved to accommodate changes in reality arising fromchanges in technology, and just as tort law adapted to the advances of theIndustrial Age, so too will it adapt to the advances of the Information Age.

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